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Family Law

The leading authority on all aspects of family law

15 MAY 2007

Disclosure: sacrificing the privilege of self-incrimination for the greater good of child protection?

Susan S M Edwards, Professor of Law, University of Buckingham. In care proceedings, the cause of harm to a child, and the future risk of harm, can only be properly established if the parties co-operate in child protection investigations by providing full and frank disclosure. The amendments to the rules regulating use of information obtained in care proceedings in criminal proceedings concerning the adults involved, which were made by the Family Proceedings (Amendment No 4) Rules 2005 (SI 2005/1976), have upset the delicate balance between the undeniable importance of child protection and the privilege against self-incrimination, a central principle of the rules of natural justice. This article considers the complex issues involved as potentially incriminating information is more freely available and more likely to influence a criminal trial, despite the courts' powers to exclude evidence in the interests of fairness and due process. Comparing the position pre and post the 2005 amendments, and considering guidance which has been offered since by the courts, it is argued that in criminal cases legal advisors need to consider applications to exclude evidence and judges need now to consider how to construe fairness in the context of the amended Rules. For the full article see June [2007] Fam Law.

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